The decision of the England and Wales Court of Protection (the “COP“) in Re GED (Various Applications Concerning Foreign Representative Powers) [2019] EWCOP 52 concerned five separate applications asking the COP to make orders giving effect to foreign representative powers in England and Wales.

In reviewing these application the COP stated that the approach previously taken in recognising these foreign representative powers, in Re JMK [2018] EWCOP 5, was too restrictive. In addition, Re GED clarified the law surrounding the recognition and enforcement of foreign representative powers under the Mental Capacity Act 2005 (the “Act“).

This is an interesting decision on how to deal with foreign representative powers. This is an issue that is of increasing importance given that there are a growing number of individuals that have assets and property in multiple jurisdictions.

Background

The hearing in Re GED stems from the 2018 case of Re JMK, which is a previous decision of the COP by HHJ Hilder. Re JMK concerned whether an unregistered continuing power of attorney validly made in Ontario could be recognised in England and Wales. HHJ Hilder noted that the power of attorney was not approved by the relevant foreign court and stated that, under the Act, this meant that the power of attorney was not a protective measure. Consequently, HHJ Hilder decided that a foreign representative power could not be recognised in England and Wales unless it had been approved by a court in the relevant foreign jurisdiction.

This decision was heavily criticised by legal commentators who noted that the Judge’s decision was too narrow. In particular, commentators noted that the Judge was being asked the wrong question and did not have the benefit of legal submissions in this case as the application was made by two litigants in person.

In response, HHJ Hilder invited the Official Solicitor to present Re JMK along with 4 other applications to help clarify the COP’s approach to foreign representative powers. In these proceedings JMK was renamed to GED. The applications in Re GED concerned the following foreign jurisdictions: Ontario, British Columbia, New Zealand, Singapore, and Spain.

Judgment

HHJ Hilder clarified the position on when a protective measure, such as a continuing power of attorney, taken out in a foreign jurisdiction should be recognised in England and Wales. She noted that foreign representative powers do not require approval of a foreign court to be regarded as a protective measure. In coming to this conclusion HHJ Hilder admitted that her previous approach in Re JMK had been too restrictive.

HHJ Hilder noted that a foreign representative power could be transformed into an English protective measure through a process of registration linked to loss of capacity. In addition, HHJ Hilder noted that the COP had to apply the recognition and enforcement provisions of Schedule 3 Part 4 of the Act in relation to a proposed protective measure.

HHJ Hilder also discussed the various options holders of foreign representative powers would have to get these powers recognised in England and Wales. Her analysis also included what orders the COP could grant to ensure that foreign representative powers are recognised in England and Wales along with the tests for granting these orders. These are outlined below:

  • The holder of a power could seek to rely on that power in England and Wales without approval from the Courts. However, it was noted that this was unlikely be effective as England and Wales financial institutions usually seek domestic confirmation.
  • The holder of a power could obtain an order from the country where the donor is resident and then seek recognition of that order in England and Wales. However, this was noted to be an unattractive option as it would require the holder of the power going to two different courts.
  • The holder of a power could seek to obtain a declaration under section 15(l)(c) of the Act that they are acting lawfully in England and Wales when exercising authority under the power. In this regard the COP confirmed that Schedule 3, Paragraph 13 of the Act must be complied with and that the exercise of the relevant power must be in accordance with the principles of English law.
  • The COP could make an order under section 16 of the Act. Under section 16, the COP exercises its full jurisdiction and can make a one off order authorising a transfer or appoint the holder of the power as the adult donor’s deputy for property and affairs. If section 16 is exercised by the COP it must be satisfied that that the person lacks capacity as per section 2 of the Act and must be satisfied that the relevant action is in the best interests of that person. The COP helpfully noted that the existence of a valid foreign representative power  was a material consideration when considering what was in the best interests of the person in question, but it was not a bar to the exercise of the COP’s jurisdiction under section 16.

Applied to the 5 applications the COP decided the following:

  • In Ontario the power of attorney had not been the subject to any registration or confirmation and was not a protective measure. HHJ Hilder noted that the appropriate order to make would be under section 16 of the Act once the relevant paperwork was filed with the Court.
  • In British Columbia the certificate of incapability was recognised as a protective measure as it had been the responsibility of designated health officials. The COP held that the certificate properly secured the protected person’s interests and position.
  • Similarly to Ontario above, the New Zealand enduring power of attorney was not registered with any official body and was not a protective measure. HHJ Hilder noted that there would need to be either an application under section 15 or 16 of the Act.
  • In Singapore, a lasting power of attorney registered with Singapore’s Office of the Public Guardian was not a protective measure because the registration was not linked to the lack of capacity on the part of the donor. Instead was linked to the granting of the power. However, the COP made an declaration pursuant to section 15 of the Act.
  • The Spanish power of attorney could not be recognised because there was nothing contained in the power which indicated that it would continue after the donor lost capacity. HHJ Hilder noted that section 15 of the Act would not be appropriate here. HHJ Hilder outlined that the three options remaining here would have been to: (i) get a court order from the Spanish Court which could be recognised in England and Wales; (ii) get the donor to execute a lasting power of attorney in England; or (iii) for the COP to make an order under section 16 of the Act.

Comment

The COP’s decision clarifies the law in relation to the recognition of foreign representative powers  and clearly identifies the different ways holders of foreign representative powers can obtain recognition of these powers in England and Wales. Furthermore, the COP’s decision provides 5 examples which shows how the law is applied. This is particularly useful as the recognition of foreign representative powers is a complex issue and this judgment provides a higher degree of certainty to holders of foreign representative powers who seek to have these powers recognised in England and Wales.


Disclaimer

Herbert Smith Freehills LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, we will refer the matter to and work with licensed Singapore law practices where necessary.